Pendakwa Raya v KANNAN A/L LETCHUMANAN

Case Significance

Illustrates that the breath test under section 45B and the two-specimen procedure under section 45C(1) of the Road Transport Act 1987 must be correctly construed, and that an acquittal resting on a misreading of those provisions is unsafe and will be set aside.

This Court of Appeal decision concerns the interpretation of the breath and specimen provisions of the Road Transport Act 1987 in a drink-driving prosecution. The respondent had been convicted by the Magistrates' Special Traffic Court of an offence under section 45A(1) of the Road Transport Act 1987 of driving a motor vehicle with an alcohol concentration above the prescribed limit, but the High Court acquitted him on the view that the breath test under section 45B(1) is merely an "initial" breath test, which, if positive, makes it mandatory for the investigating officer to require the accused to provide two specimens of breath or a specimen of blood or urine under section 45C(1); because the officer had not done so, the High Court held the conviction unsafe. The prosecution appealed. At the hearing the Deputy Public Prosecutor indicated that the appeal was directed only at the High Court's construction that section 45C(1) was mandatory, and not at the acquittal as such, though the appeal against the acquittal was not formally withdrawn. The Court of Appeal held that the High Court had misconstrued the statutory scheme, and that its acquittal, resting on that wrong interpretation of the Road Transport Act, was unsafe. It set aside the High Court's decision and restored the Magistrate's conviction under section 45A(1). On sentence, taking into account that this was the respondent's first offence, that he was employed as a bank officer, and that the offence caused no accident, injury or damage, the Court substituted the fourteen-day imprisonment term imposed by the Magistrate with one day's imprisonment, increased the fine from RM10,000 to RM15,000 (in default six months' imprisonment), and affirmed the two-year suspension of his driving licence. The judgment illustrates the proper construction of the breath-and-specimen procedure under the Road Transport Act 1987. The court's approach reflects that where an acquittal turns on a pure question of statutory construction, an appellate court may correct the error of law and restore the conviction, while calibrating the sentence to the offender's circumstances and the absence of aggravating consequences.